Citation Nr: 25004544
Decision Date: 04/03/25	Archive Date: 04/03/25

DOCKET NO. 17-29 353
DATE: April 3, 2025

ORDER

Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis prior to October 5, 2020, is denied.

FINDING OF FACT

The impairment due the Veteran's service-connected disabilities does not render him unable to secure or follow a substantially gainful occupation.

CONCLUSION OF LAW

The criteria for TDIU on an extraschedular basis prior to October 5, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the Army from November 1977 to March 1978 and from August 1980 to November 1990.

This matter was most recently before the Board of Veterans' Appeals (Board) in April 2024, where the Board remanded the issue of entitlement to TDIU prior to October 5, 2020, specifically for consideration in the first instance of entitlement to TDIU on an extraschedular basis by the Director of Compensation and Pension Services. As the record reflects a recommendation by the Director in November 2024, the Board is satisfied there has been substantial compliance with the April 2024 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

TDIU

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1).  The Board must consider if the Veteran can obtain employment of more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person.  See Ray v. Wilkie, 31 Vet. App. 58 (2019).

Further, the Board should also consider whether given the Veteran's history, education, skill, and training, in conjunction with the Veteran's physical and mental ability, he can perform the type of activities required by the occupation at issue. Id. Moreover, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify TDIU.  38 C.F.R. §§ 3.341 (a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b).

Entitlement to a TDIU is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019).

1. Entitlement to TDIU prior to October 5, 2020.

The Veteran seeks TDIU prior to October 5, 2020. He contends that his service-connected bilateral lower extremity conditions have prevented him from maintaining substantially gainful employment since 2015.

As an initial matter, the Veteran does not meet the schedular criteria for TDIU for the period on appeal. For schedular TDIU, the regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is in receipt of TDIU from October 5, 2020, the date he met the schedular requirements for TDIU. For the period on appeal prior to October 5, 2020, the Veteran had a 10 percent evaluation for right knee condition,10 percent for left knee condition, 10 percent for right ankle condition, 10 percent for left ankle condition,10 percent for left foot condition, 10 percent for a right foot condition, and 10 percent for tinnitus, with a total combined evaluation of 60 percent.

When the percentage requirements for a schedular TDIU rating are not met, a TDIU on an extraschedular basis, may nonetheless be granted when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities.  See 38 C.F.R. § 4.16(b).

In this regard, the Director of Compensation Service issued an advisory opinion regarding extraschedular consideration for TDIU under 38 C.F.R. § 4.16(b).  Although the Board is required to obtain the Director of Compensation Services decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director of Compensation Service's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)).  In this case, the issue of entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b) has already been remanded and referred to the Director of Compensation Service. Therefore, entitlement to TDIU on an extraschedular basis is now before the Board and can be addressed on the merits.

The remaining and dispositive question is whether, prior to October 5, 2020, "the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected condition.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

After review of the evidence of record, the Board finds that TDIU for this period is not warranted.

Specifically, the Veteran has demonstrated significant mental ability to pursue and follow occupation. He has a college degree, which he has successfully utilized for past employment. The Veteran's previous employment positions also required skills in working with people. He did not describe any difficulties interacting with others, or difficulties with complex information or understanding. Overall, he appears to have considerable education, mental, and interpersonal skills that support the ability to be substantially and gainfully employed. 

Based on his testimony and the evidence of record, it would appear that the Veteran's ability to secure and follow a substantially gainful occupation is impacted primarily by the physical effects of his bilateral knee, ankle, and foot disabilities. 

In this regard, the Veteran has expressed significant impact. However, when considering all the evidence, the Board finds that the impact of his service-connected disabilities did not prevent him from being able to secure or follow a substantially gainful occupation prior to October 5, 2020. Specifically, the medical evidence, including treatment records, does not indicate consistent severity of symptoms that would have prevented him from securing or following a substantially gainful occupation. While treatment records indicate severe limitation of a lot of activities, they do not reflect an inability to perform some significant physical tasks and primarily indicate limitation in prolonged activity.

For instance, private treatment records indicate periods of significant physical ability despite reports of pain. For instance, a July 2014 record noted daily physical activity for exercise, and records through May 2016 list occupation as a therapist and assistant basketball coach. A May 2016 record noted the Veteran reported increased pain in his knees and difficulty with stairs. However, this does not appear to be consistently severe as he also reported problems were "on and off," that he was going to coach a college level basketball camp, and reported activity including landscaping and digging. Testing conducted at this appointment was negative other than some patellar crepitus which was described as not particularly painful. A June 2017 record reported enjoyment of swimming and biking, that he had ordered treadmill, and remained active including being a playing musician and owning production company. An August 2020 record reported stiffness and difficulty walking long distances, however, a September 2020 record indicated above average activity level three to four times a week.

The Veteran reported in his social security disability application an inability to sit or stand for extended periods of time, and severe pain that occasionally required narcotic medication. However, he also reported ability to complete light household chores and run errands, walk 30-60 minutes before needing to stop and rest, and no inability to perform personal care activities. The June 2015 social security capacity assessment noted the Veteran was capable of occasionally lifting or carrying 20 pounds, frequently lifting or carrying 10 pounds, standing or walking with normal breaks about 6 hours in an 8 hour workday, sitting with normal breaks about 6 hours in an 8 hour workday, and occasional limitation with climbing stairs or ladders, balancing, stooping, kneeling, crouching, or crawling. Notably, the assessment determined he should be able to return to past work as a Social Service Specialist as generally performed in the national economy.

VA treatment records reflect reports of significant pain in the knees and ankles, however, function appears limited primarily with prolonged or specific activities. At an April 2018 annual visit, the Veteran complained of pain in the ankles and knees of grinding/sharp quality for the past 20 years, however he noted this was worse with prolonged walking especially uneven ground, and prolonged standing. Notably, gross range of motion was observed as intact as well as normal gait and station. A December 2018 record noted severe pain, that appeared to be managed significantly with a course of treatment. Notably, the physician encouraged continued strength and flexibility exercises. An October 2019 record again noted severe pain, which disturbed sleep, restricted walking to one block, and noted pain going downstairs and getting up after sitting for long time. Although problems were still noted at an August 2020 visit, no active synovitis and good range of motion of both ankles along with normal gait was observed.

Several examinations have been obtained to determine the severity of the Veteran's conditions. Reports from the August 2013 VA foot conditions, ankle conditions, and knee conditions examinations reflect that he was self-employed at the University of Oregon as a skills teacher, and that his bilateral foot, ankle, and knee disabilities caused him pain while he was teaching. However, there is no indication symptoms prevented him from being employed at that time. The reports from the June 2016 ankle conditions and knee conditions VA examinations reflect that the examiner determined that the functional impact of his bilateral ankle and bilateral knee disabilities did not restrict him from light and sedentary work despite his knees bothering his when he walked for over 30 minutes, climbed stairs for three to four minutes, walked with 50 pounds of weight in his arms, and when he sat for more than 30 to 40 minutes, and his ankles bothering him when he walked for more than 30 minutes or climbed stairs for three to four minutes. November 2020 examinations reported an inability to run, and inability stand or walk for longer than 30 minutes without breaks. Overall, VA examinations are consistent with treatment records that indicate difficulty with prolonged or significant activity. However, the functional impairment, even at worst, indicates the ability to stand, walk, and sit in at least 30 minute intervals which indicates there would be many employment options able to accommodate these needs. 

With respect to tinnitus, the report from the August 2013 hearing loss and tinnitus VA examination reflects that his tinnitus caused functional impact to the extent that he was irritated with intermittent high-pitched ringing primarily in his left ear. However, intermittent irritation would not be expected to significantly limit any activities, and there are no reports that suggest any significant limitation. 

A private opinion from a treating physician in September 2017 reported he was not able to do normal employable functions in a work setting of eight hours of sitting, standing, walking, crouching, climbing, bending, or twisting. However, this is not persuasive as there are many occupations that would not require eight hours constant sitting, standing, or walking. The evidence does not support the Veteran would be unable to alternate sitting and standing, along with occasional walking, in a normal eight hour workday, particularly with reasonable accommodation of regular breaks.

A January 2022 private vocational assessment shows the Veteran reported difficulty with prolonged sitting, standing, and walking, chronic daytime fatigue due to difficulty sleeping caused by physical discomfort, trouble falling asleep, inability to drive over 30 minutes, constant incapacitating pain, falls due to leg and ankle instability. He reported he was forced to resign in 2015 due to lower extremity pain and negative effects of pain on concentration. The vocational consultant opined it was more likely than not the Veteran was unable to secure and follow substantially gainful employment, including unskilled sedentary employment, since at least 2015 due to his service-connected disabilities. The consultant noted that significant physical limitations prevented sitting longer than 30-40 minutes, walking over 30 minutes, and required frequent alternating of positions and breaks. Moreover, that tinnitus would create difficulty or inability to interact with others effectively. 

However, this private opinion is not persuasive, as it is largely inconsistent with the other evidence of record, including treatment records. Of particular note, while pain that disturbed sleep was noted in treatment records, it appeared only occasionally, was not reported as causing fatigue. In September 2017, it was described as intermittent due to heavy activity. October 2019 and August 2020 records noted pain that disturbed sleep, but noted no fatigue. While treatment records do note occasional reports of fatigue, these reports do not indicate this is due to physical discomfort related to his knee, ankle, or foot disabilities. For instance, a November 2021 record noted daytime fatigue and insomnia, but notably, although knee pain was discussed at the visit, the Veteran did not report that pain as the cause of sleeping difficulties, and the physician noted possible sleep apnea as the cause. There are no reports of falls or incapacitation to treatment providers, indeed the Veteran is regularly described as having normal gait and is not observed as having difficulty ambulating. While the Veteran reported in the private vocational assessment that he was forced to resign in 2015 due to pain, he reported in a February 2017 record that while left earlier employment due to physical demands of job, that he left his last position due to contract expiration. Moreover, the evidence of record does not demonstrate any significant difficulty in communicating with others effectively.

While the private vocational opinion noted physical limitations that would prevent prolonged sitting or walking and would require frequent alternating of positions and breaks, this would not prevent gainful employment. Given the Veteran's occupational background and education, his potential options for future employment are exceptionally broad. As noted above, there are many occupations that would not require eight hours constant sitting, standing, or walking. The evidence does not support the Veteran would be unable to alternate sitting and standing, along with occasional walking, in a normal eight hour workday, particularly with a reasonable accommodation of regular breaks. Thus, while the January 2022 private vocational assessment concluded that the Veteran is unemployable due to his service-connected disabilities, the other evidence of record outweighs this conclusion. 

The Director of Compensation Service opined in January 2025 that in this case, after giving consideration to all relevant evidence including, but not limited to the Veteran's education, training, and work history, the Director of Compensation Service has determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to October 5, 2020. The Director of Compensation Service referenced evidence specific to the Veteran's case, including reports of employment and symptoms. For instance, the report noted Veteran Readiness and Employment (VRE) records showed that the Veteran was found entitled to services in February 2014 with a vocational goal of Social Worker or closely related field. 

Notably, VRE records reflect the Veteran initially chose a public relations goal, and VRE communicated this would aggravate his disabilities, exposing him to uneven terrain, stairs, prolonged standing, prolonged walking given his report that he could barely walk and was unwilling to pursue mobility accommodations, and that this required change in his vocational goal. The record shows no response was provided following this communication, and thus he was discharged from VRE. In February 2017, another VRE record shows the Veteran requested vocational rehabilitation, and stated he wished to further his education to obtain employment, which indicates his own belief at that time of his ability to work, even given his inability to walk on uneven ground, or stand, sit, run, or jump for any long periods as he reported. A February 2017 counseling report noted his disabilities significantly impaired his ability to obtain or retain employment, experiences pain and discomfort in prolonged sitting, standing, and walking, and because of these impairments was unable to obtain, maintain, or prepare for specific employment in the labor market that does not aggravate his service-connected disabilities. 

In weighing the evidence, the Board acknowledges the Veteran's report of symptoms, including pain that was sometimes severe, during the period on appeal. This would likely preclude him for very active employment, such as his work as a social worker based on his descriptions. However, the Board does not find his symptoms were of the severity to preclude him from less active employment, including sedentary work, during the period on appeal. 

Sedentary employment is determined on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history. Thus, the Board must explain this meaning and how the concept of sedentary work factors into the veteran's overall disability picture and vocational history. The Social Security Administration has stated that sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like dockets, files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally, and other sedentary criteria are met. See 20 C.F.R. § 404.1567(a). In this case, the evidence of record indicates he is capable of standing and walking for periods of time, and his service-connected disabilities alone would not preclude him from many forms of sedentary employment.

As such, when considering the Veteran's overall disability picture, he would likely be precluded from occupations which require constant sitting, standing, or walking. However, he would not be precluded from occupation which required occasional standing or walking. While he may experience difficulty at times, and require frequent transitioning from standing to sitting, and may even require accommodations for extra time or breaks to address symptoms, the evidence does not demonstrate he is incapable of substantially gainful occupation during the period on appeal.

The record has consistently noted adequate range of motion, normal gait, and ability to walk, stand, and sit for intervals during the period on appeal. Moreover, the record reflects the ability for significant activity at times, which indicates severe symptoms were less likely to be constant in nature. The opinions of VA examiners on functional impairment, as well as the opinion of the Director of Compensation Service, do not demonstrate severity that would preclude employment. The Board finds these opinions to be more consistent with the other evidence of record, including treatment records. Moreover, the Board does not find the private opinions of record persuasive to overcome the other evidence of record. 

After consideration of all the evidence, the Board cannot conclude that his service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to October 5, 2020. Accordingly, entitlement to TDIU prior to October 5, 2020, must be denied.

In coming to this conclusion, the Board has considered the Veteran's statements that his disability severely limited his physical activity and prevented his employment. The Veteran is competent to provide testimony on matters he has personally experienced, including symptoms such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Board must also consider credibility of testimony. In this case, the Veteran's reports are not generally consistent with reports in contemporaneous treatment records that periodically report the ability to perform significant activity. For example, a private treatment record in late September 2020 noted the Veteran with above average activity level, three to four times a week. In weighing all the evidence, the Board finds that although the Veteran suffers from symptoms related to service-connected disabilities, these symptoms did not prevent him from securing or following a substantially gainful occupation. 

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The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Patterson, Associate Counsel